On The Death of Fazal Hoque his Legal heir Shri Sahjamal Ali and Others vs The State of Assam and Others

M. Sharma, J.—This writ petition has been preferred against the judgment and order of the State Government dated 25.5.88 issued by the Deputy Secretary to the Govt. of Assam, Revenue Department, Land Reforms Branch, Dispur, Guwahati - 6.

The land involved in the dispute is 9B 1K 17Ls under Dag No. 508/32 covered by KP Patta No. 58 at Hatigaon, Mouza Beltola. The predecessor in interest of the writ Petitioner was a tenant under the landlords Arif Hussain and others but during the settlement operation in 1966, the name of the Petitioner was not recorded in the record of rights as tenant but through mechanisation of the landlords name of the Respondent No. 5 Mr. Fakir Chand has been entered in the record of right. The Petitioner filed Khatian Objection Case No. 22 (K)/78-79 before the Assistant Settlement Officer and the Assistant Settlement Officer directed to record the name of the Petitioner as Khatian holder by order dated 29.5.81. Respondent No. 5 appealed against the said order of ASO before the Settlement Officer in RA Case No. 49/80-81 and the same was upheld by the Settlement Officer. On appeal by Respondent No. 5 being DLR Case No. 7/82 before the Director of Land Records, the Respondent No, 5 had been held as the tenant by setting aside the order of the Settlement Officer. Against this the Petitioner filed a petition u/s 59(2) of the Assam (Temporarily Settled Areas) Tenancy Act, 1971 before the State Government and by order dated 19.7.85 the Government restored the aforesaid orders of the Assistant Settlement Officer and the Settlement Officer and set aside the order of Director of Land Records. Thereafter Khauan was issued to the Petitioner in respect of the said land, being Khatian No. 95. Respondent No. 3 and 5 filed a review petition for review of the order dated 19.7.85 before the Government alleging that the Respondent No. 3 was not heard. By impugned order dated 25.5.88 the Government reviewed its earlier order dated 19.7.85 and set aside the same holding, that the tenancy right over the said land was vested with Respondent No. 5 Fakir Chand.

The writ Petitioner has impugned this order of the Government on the ground that the Act. 1971 has neither conferred any power to review its order nor inherent power has been conferred to the Government and therefore the impugned order is illegal and without jurisdiction.

Mr. Bhuyan, learned Counsel for the Petitioner referred Dr (Smt.) Kuntesh Gupta Vs. Management of Hindu Kanya Mahavidyalaya, Sitapur (U.P.) and Others, in support of his case.

Order 47 of CPC provides for power of review of judgment and order. The power of review is very limited, and restricted. Any judgment/order can be reviewed on the throe specific grounds - (1) discovery of new and important matter or evidence; (2) mistake/error apparent on the face of record or (3) for any other sufficient reason. But in any case, unless review is provided by any statute an authority under the statute cannot review its own judgment/order as power to review is he creature of statute. In absence of such power if any authority whether judicial or administrative review its judgment/order is not legal and without jurisdiction. The power of review must, be conferred by law, either specifically or by implications.

In view of the above, it appears that the Respondent No. 3 and 5 filed the review application dated 25.6.87 before the State Government for review of its earlier order dated 19.7.85 and in purported exercise of the powers conferred u/s 59(2) of the Tenancy Act, 1971 reviewed the order dated 19.7.85 and set aside the same holding Respondent No. 5 as actual tenant of the said land It is relevant to note that Respondent No. 5 was not a party to the said application for review.

Section 59 of the Tenancy Act is quoted here:

Appeal to and revision by superior authorities - (1) An appeal, if presented within two months from the date of the order appealed against, shall lie to the Director of Land Records or any other officer or officer authorised by the State Government in this behalf from every order passed by a Settlement Officer prior to the final publication of the record of rights on any objection made.

The orders of the Director of Land Records or any other officer or officers authorised by the State Government in this behalf shall, subject to the following sub section, be final.

(2) The State Government may in any case on application or of its own motion, direct the revision of my record of rights or any portion of a record of rights.

Provided that no such direction shall be made until reasonable notice has been given to the parties concerned to appear and be head in the matter.

After going, through the Section 52 of the Tenancy Act, 1971 it apparently shows that there is no provision in the Act for review of its earlier order passed by the State Government. This section gives power to the State Government, in any case, either on application of either party to the dispute or on its own motion for revision of any record of rights of any protion of a record of rights. Order of the Director of Land Records passed u/s 59(2) of the Act is final, subject to the power of the Government provided u/s 59(2) of the Act. No inherent power of review has been provided in the Act nor there is any provision empowering the State Government for review by implication. In that view of the matter, the power having been exercised u/s 59(2) of the Act no further power under that provision of law can be exercised by the Government in the name of review.

Mr. A.B. Choudhury, learned Counsel for the Respondent No. 3 in support of his submissions referred 1991 (1) GLJ 78 Godde Venkateswara Rao Vs. Government of Andhra Pradesh and Others, Greater Delhi Planners Ltd. Vs. State of Haryana and Another, Greater Delhi planners Ltd. v. State of Haryana and Anr. It is urged on behalf of the Respondent No. 3 that the Government having passed the earlier order ex parte., it was open to it as a quasi judicial authority to review the matter at the instance of the aggrieved party, that the Act is not applicable in the area where the land is situated and that interference with the impugned order shall revive the illegal order which is not permissible in law. The submissions of the learned Counsel is not sustainable on the ground that unless the power to review is given by statute impliedly or specifically to an authority whether judicial or quasi judicial no jurisdiction can be entertained by such authority as the power of review is very limited and restricted which limits the power/jurisdiction of an authority under a statute to correct, set aside or recall its own decision on a review application. the decisions referred by Mr. Choudhury is not applicable in this case on the reasons given above provision for power of review in a particular Act cannot be imported to another, when the legislature in its wisdom does not confer such power in the Act.

As it appears, the review Petitioners were landlords. The dispute regarding tenancy right is between the Petitioner and Respondent No. 5 Fakir Chand. The Respondent No. 3 and 4 being landlords have no right to file a review application against an entry in a record of right of the two rival claimants in view of the fact that tenancy is not disputed.

Further, review of the order dated 19.7.85 was prayed for on the order of cancellation of tenancy right u/s 51(2). Respondent No. 5 has alternative remedy to file suit before the appropriate civil court.

In view of the above discussion the writ petition is allowed. No costs.